Whose interests does justice serve?

The prosecutor of the International Criminal Court (ICC) took a bold and controversial step when, on 14 July, he requested an arrest warrant for Sudanese President Omar Bashir on charges of genocide, crimes against humanity and war crimes.

Justice for Darfuris is needed, not just for the victims but to help avert a repetition of atrocities, Human Rights Watch argues.

The violence in the Darfur region of Sudan has been marked by summary executions, mass rapes, inhumane treatment, pillaging and the forced displacement of more than 2 million civilians. The ICC’s prosecutor, Luis Moreno Ocampo, now accuses Bashir of having “masterminded and implemented” that campaign, which has ravaged Darfur since 2003.

It is a step that is welcomed by victims of the atrocities. In March 2005, Darfuris in refugee camps in eastern Chad danced with joy when the UN Security Council referred the situation in Darfur to the ICC prosecutor. After the ICC issued its first two arrest warrants in April 2007, against state minister for humanitarian affairs Ahmed Harun and Janjaweed leader Ali Kosheib, refugees told Human Rights Watch researchers they were pleased the two men were charged, but they wanted to see more. They wanted the ICC to hold accountable the man whom they viewed as primarily responsible for their fate: President Bashir.

So, in the eyes of victims themselves, the prosecutor’s request is a significant step towards bringing justice. It is now for the judges to decide whether to issue an arrest warrant against Bashir based on the evidence before them.

Unfortunately, international observers of the violence have been mixed in their response to the prosecutor’s initiative. Some diplomats have expressed concerns that an arrest warrant against Bashir may jeopardise the deployment of the United Nations peacekeeping force in Darfur (UNAMID) and the access of humanitarian organizations and agencies to those in need. Those involved in trying to revive the stalled peace talks on Darfur have argued that the ICC prosecution could close the door to a negotiated solution for peace and security in Darfur, to the detriment of the region’s long-suffering population.

Some commentators – such as the Financial Times’ Gideon Rachman – have even argued that the prosecutor should not be allowed to exercise his mandate independently but should rather be subordinated to those in the diplomatic circles who really understand the political stakes.

Better left to politicians?

But accountability matters not just for the victims, but also for practical and political reasons. Based on our experience in Sudan and a myriad of other armed conflicts around the globe, Human Rights Watch is convinced that accountability for the most serious international crimes can serve not only the interests of victims who want to see justice for their suffering, but also the longer-term interests of peace and stability.

Tactics currently being used in Darfur, including “scorched earth” practices and the arming of proxy militias to attack civilians deemed close to the rebels, were tested at length during the 20-year conflict between the Sudanese government and southern rebels, which was settled by the Comprehensive Peace Agreement in 2005. Accountability for grave crimes under international law was left off the table during those lengthy peace negotiations. There is little doubt that this free card emboldened those in Khartoum to resort to the same criminal tactics in Darfur.

Moreover, to argue that diplomats and politicians alone should decide what steps can be taken regarding the atrocities in Sudan risks maintaining the current impasse. To date, five years since the atrocities began, diplomatic efforts to solve the crisis in Darfur have met with little co-operation on the part of the Sudanese government. The deployment of the peacekeeping force (which the Sudanese government took four years to agree to) remains slow and unsatisfactory, with a mere one-third of the authorised force deployed. Access by humanitarian workers and peacekeepers to the region is a daily struggle and attacks and crimes against civilians in Darfur continue unabated. Rapes of women and girls continue on a daily basis.

What politicians and diplomats could best do now would be to confer credibility on the actions of the ICC, by lending their support. An arrest warrant for President Bashir would be the strongest signal to date that further atrocities will not be tolerated and that the crimes must stop – immediately. Political hesitation in the face of a strong condemnation of the most serious international crimes would hardly make President Bashir flinch. Strong international mobilisation in support of justice is needed – and a leading mobilising force should be the European Union, as a strong supporter both of justice for grave crimes and of the ICC.

Stopping the crimes is in the interest of victims in Darfur now. Punishing the most serious international crimes and thus hopefully deterring future Bashirs from committing such atrocities is in the interest of all.

Géraldine Mattioli works for the justice programme of Human Rights Watch in Brussels.

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